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The New Yorker - A Bug in the System - Why last night’s chicken made you sick.

The New Yorker - A Bug in the System - Why last night’s chicken made you sick.

Mar 27 2015

BY WIL S. HYLTON February 2, 2015

Late one night in September of 2013, Rick
Schiller awoke in bed with his right leg throbbing. Schiller, who is in his
fifties, lives in San Jose, California. He had been feeling ill all week, and,
as he reached under the covers, he found his leg hot to the touch. He struggled
to sit upright, then turned on a light and pulled back the sheet. “My leg was
about twice the normal size, maybe even three times,” he told me. “And it was
hard as a rock, and bright purple.”

Schiller roused his fiancée, who helped him
hobble to their car. He dropped into the passenger seat, but he couldn’t bend
his leg to fit it through the door. “So I tell her, ‘Just grab it and shove it
in,’ ” he recalled. “I almost passed out in pain.”

At the hospital, five employees helped move
Schiller from the car to a consulting room. When a doctor examined his leg, she
warned him that it was so swollen there was a chance it might burst. She tried
to remove fluid with a needle, but nothing came out. “So she goes in with a
bigger needle—nothing comes out,” Schiller said. “Then she goes in with a huge
needle, like the size of a pencil lead—nothing comes out.” When the doctor
tugged on the plunger, the syringe filled with a chunky, meatlike substance.
“And then she gasped,” Schiller said.

That night, he drifted in and out of
consciousness in his hospital room. His temperature rose to a hundred and three
degrees and his right eye oozed fluid that crusted over his face. Schiller’s doctors
found that he had contracted a form of the salmonella bacterium, known as
Salmonella Heidelberg, which triggered a cascade of conditions, including an
inflamed colon and an acute form of arthritis. The source of the infection was
most likely something he had eaten, but Schiller had no idea what. He spent
four days in intensive care before he could stand again and navigate the
hallways. On the fifth day, he went home, but the right side of his body still
felt weak, trembly, and sore, and he suffered from constant headaches. His
doctors warned that he might never fully recover.

Three weeks later, Schiller received a phone
call from the Centers for Disease Control and Prevention. An investigator
wanted to know whether he had eaten chicken before he became sick. Schiller
remembered that he’d bought two packages of raw Foster Farms chicken thighs
just before the illness. He’d eaten a few pieces from one of the packages; the
other package was still in his freezer. Several days later, an investigator
from the U.S. Department of Agriculture stopped by to pick it up. She dropped
the chicken into a portable cooler and handed him a slip of paper that said
“Property Receipt.” That was the last time Schiller heard from the
investigators. More than a year later, he still wasn’t sure what was in the
chicken: “I don’t know what the Department of Agriculture found.”

Each year, contaminated food sickens
forty-eight million Americans, of whom a hundred and twenty-eight thousand are
hospitalized, and three thousand die. Many of the deadliest pathogens, such as
E. coli and listeria, are comparatively rare; many of the most widespread, such
as norovirus, are mercifully mild. Salmonella is both common and potentially
lethal. It infects more than a million Americans each year, sending nineteen
thousand victims to the hospital, and killing more people than any other
food-borne pathogen. A recent U.S.D.A study found that twenty-four per cent of
all cut-up chicken parts are contaminated by some form of salmonella. Another
study, by Consumer Reports, found that more than a third of chicken breasts
tainted with salmonella carried a drug-resistant strain.

By the time Schiller became infected by
salmonella, federal officials had been tracking an especially potent outbreak
of the Heidelberg variety for three months—it had sent nearly forty per cent of
its victims to the hospital. The outbreak began in March, but investigators
discovered it in June, when a cluster of infections on the West Coast prompted
a warning from officials at the C.D.C.’s PulseNet monitoring system, which
tracks illnesses reported by doctors. Scientists quickly identified the source
of the outbreak as Foster Farms facilities in California, where federal
inspectors had discovered the same strain of pathogen during a routine test.
Most of the victims of the outbreak confirmed that they’d recently eaten
chicken, and many specifically named the Foster Farms brand. On August 9th,
investigators joined a conference call with Foster Farms executives to inform
them of the outbreak and its link to the company.

Identifying the cause of an outbreak is much
simpler than trying to stop one. Once officials have traced the contamination
to a food producer, the responsibility to curb the problem falls to the
U.S.D.A.’s Food Safety and Inspection Service, or F.S.I.S. In the summer of
2013, as the outbreak spread, F.S.I.S. officials shared the C.D.C.’s conclusion
that Foster Farms meat was behind the outbreak, but they had no power to force
a recall of the tainted chicken. Federal law permits a certain level of
salmonella contamination in raw meat. But when federal limits are breached, and
officials believe that a recall is necessary, their only option is to ask the
producer to remove the product voluntarily. Even then, officials may only request
a recall when they have proof that the meat is already making customers sick.
As evidence, the F.S.I.S. typically must find a genetic match between the
salmonella in a victim’s body and the salmonella in a package of meat that is
still in the victim’s possession, with its label still attached. If the patient
has already eaten the meat, discarded the package, or removed the label, the
link becomes difficult to make, and officials can’t request a voluntary recall.

As the Heidelberg outbreak continued into the
fall, F.S.I.S. investigators tracked down dozens of patients and asked them to
search their homes for contaminated chicken. In some cases, they discovered
Foster Farms chicken that tested positive for salmonella—but they could not
find a genetic match. David Goldman, who oversees public health at the
F.S.I.S., told me, “We started about a hundred and forty trace-back efforts.
And we failed in every case.”

Meanwhile, Foster Farms was still producing
chicken. By mid-September, on the week that Schiller checked into the hospital,
at least fifty new patients had been infected—the most of any week since the
outbreak began. On October 8th, the C.D.C. issued its first warning to the
public: two hundred and seventy-eight patients had now been infected with Heidelberg
in seventeen states, the agency reported, and Foster Farms chicken was the
“likely source” of the outbreak. On November 15th, the C.D.C. raised the number
to three hundred and eighty-nine victims in twenty-three states. By early July,
2014, there were six hundred and twenty-one cases. Scientists estimate that for
each reported case twenty-eight go unreported, which meant that the Foster
Farms outbreak had likely sickened as many as eighteen thousand people.

Finally, on July 3, 2014, more than a year
after the outbreak began, officials at the F.S.I.S. announced a genetic match
that would allow the agency to request a recall. Foster Farms executives agreed
to withdraw the fresh chicken produced in its California facilities during a
six-day period in March of that year. All other Foster Farms chicken would
remain in distribution.

A few days later, I stopped by the office of
Representative Rosa DeLauro, a Democrat from Connecticut and one of the most
vocal advocates for food safety in Congress. After twenty-five years in the
capital, DeLauro is not easily surprised, but when I mentioned the Foster Farms
outbreak she slammed a fist on the table. “They’re getting a tainted product
out!” she said. “What in the hell is going on?”

Rick Schiller wondered the same thing. Last
spring, as his leg healed and the headaches faded, he searched newspapers for
signs of a recall. Then he started calling lawyers. Eventually, he found Bill
Marler.

During the past twenty years, Marler has
become the most prominent and powerful food-safety attorney in the country. He
is fifty-seven years old, with neat gray hair and a compact physique; he tends
to speak in a high, raspy voice, as though delighted by what he’s about to say.
His law firm, on the twenty-eighth floor of a Seattle office building, has
filed hundreds of lawsuits against many of the largest food producers in the
world. By his estimate, he has won more than six hundred million dollars in
verdicts and settlements, of which his firm keeps about twenty per cent.

Given the struggles of his clients—victims of
organ failure, sepsis, and paralysis—Marler says it can be tempting to dismiss
him as a “bloodsucking ambulance chaser who exploits other people’s personal
tragedies.” But many people who work in food safety believe that Marler is one
of the few functioning pieces in a broken system. Food-borne illness, they
point out, is pervasive but mostly preventable when simple precautions are
taken in the production process. In Denmark, for instance, after a surge of
salmonella cases in the nineteen-eighties, poultry workers were made to wash
their hands and change clothing on entering the plant and to perform extensive
microbiological testing. Sanctions—including recalls—are imposed as soon as a
pathogen is found. As a result, salmonella contamination has fallen to less
than two per cent. Similar results have been achieved in other European
countries.

In the U.S., responsibility for food safety is
divided among fifteen federal agencies. The most important, in addition to the
F.S.I.S., is the Food and Drug Administration, in the Department of Health and
Human Services. In theory, the line between these two should be simple: the
F.S.I.S. inspects meat and poultry; the F.D.A. covers everything else. In
practice, that line is hopelessly blurred. Fish are the province of the
F.D.A.—except catfish, which falls under the F.S.I.S. Frozen cheese pizza is
regulated by the F.D.A., but frozen pizza with slices of pepperoni is monitored
by the F.S.I.S. Bagel dogs are F.D.A.; corn dogs, F.S.I.S. The skin of a link
sausage is F.D.A., but the meat inside is F.S.I.S.

“The current structure is there not because
it’s what serves the consumer best,” Elizabeth Hagen, a former head of the
F.S.I.S., told me. “It’s there because it’s the way the system has grown up.”
Mike Taylor, the highest-ranking food-safety official at the F.D.A., said,
“Everybody would agree that if you were starting on a blank piece of paper and
designing the food-safety system for the future, from scratch, you wouldn’t
design it the way it’s designed right now.”

Both the F.S.I.S. and the F.D.A. are also
hampered by internal tensions. The regulatory function at the F.S.I.S. can seem
like a distant afterthought at the U.S.D.A., whose primary purpose is to
advance the interests of American agriculture. “We’re the red-headed stepchild
of the U.S.D.A.,” one senior F.S.I.S. official told me. When regulation fails,
private litigation can be the most powerful force for change. As Marler puts
it, “If you want them to respond, you have to make them.” Robert Brackett, who
directed food safety at the F.D.A. during the George W. Bush Administration,
told me that Marler has almost single-handedly transformed the role that
lawsuits play in food policy: “Where people typically thought of food safety as
this three-legged stool—the consumer groups, the government, and the
industry—Bill sort of came in as a fourth leg and actually was able to effect
changes in a way that none of the others really had.” Hagen said the cost that
Marler extracts from food makers “can be a stronger incentive or disincentive
than the passing of any particular regulation.” Mike Taylor called litigation
such as Marler’s “a central element of accountability.”

Bill Marler lives with his wife and three
daughters on Bainbridge Island, just west of Seattle. He commutes to work on a
public ferry and spends the time walking in circles. He leaves his briefcase
with friends in the cabin, climbs to the upper level, and steps outside, into
the mist of Puget Sound. By the time the ferry reaches Seattle, forty minutes
later, Marler has usually logged about two and a half miles. A few years ago,
realizing that most of his clients were too sick or too far away to visit him
at work, he stopped wearing office attire, leaving on the wicking fabrics he wears
on the ferry. It can be jarring for a first-time visitor to pass through the
wood-panelled lobby of his firm, down a long hallway of offices filled with
paralegals and junior attorneys, only to discover a small man in damp gym
clothes reclining at Marler’s desk.

Marler rarely uses the fiery rhetoric one
might expect from a lifelong litigator. His preference is the soft sell, the
politician’s lure—cajoling insurance adjusters, health officials,
microbiologists, and opposing counsel. He developed his coaxing manner early
on. In 1977, as a sophomore at Washington State University, in the small town
of Pullman, he ran for the city council on a whim, and won by fifty-three
votes. During the next four years, he sponsored a fair-housing bill, tightened
snow-removal laws, established a bus service for drunk drivers (critics called
it Bill’s Booze Bus), and helped to manage the seven-member council’s
six-million-dollar budget.

“All these skills that I use every day—how to
deal with the media, how to deal with complex interpersonal relationships to
try to get a deal done—I learned between the ages of nineteen and twenty-two,
when everybody else was smoking dope,” he told me. Jeff Miller, an attorney in
New York, recalled the first time he faced Marler in federal court, on a day
that Miller had to leave early for a charity event. The judge was notoriously
thorny and Miller was terrified to request an early dismissal, which seemed
like an invitation for Marler to object and score points. Miller told me, “And
as I was in court, telling the judge that I needed to get out of there, Bill
just cut a significant check and said, ‘Bring this with you.’ ”

Marler became involved in food safety in 1993,
as a thirty-five-year-old lawyer at a big Seattle firm, when a client called
with a food-poisoning referral. An outbreak of E. coli, seemingly caused by
contaminated burgers from Jack in the Box, was spreading through the state.
Marler’s client had a friend whose daughter had become ill, and Marler took her
case. During the next several months, the outbreak sickened more than five
hundred Jack in the Box customers. Four children died. Marler plunged into
microbiological research on E. coli. After reading scientific papers and
talking to experts, he discovered that the bacterium, which typically lives in
the intestines of cattle, can enter the food supply in meat or when vegetables
are contaminated by fecal matter. The outbreak had been caused by a variant of
the bug known as O157:H7, which secretes a powerful toxin in a victim’s body.
In some cases, the toxin can induce a reaction called hemolytic-uremic
syndrome, in which the individual’s face and hands swell, bruises cover the
body, and blood begins to trickle from the nose. One in twenty patients dies.
The only way to kill the bacteria in food is to cook it thoroughly.

Attorneys for Jack in the Box responded to
Marler’s lawsuit by sending him more than fifty cardboard boxes of discovery
material. Marler moved the boxes to his firm’s conference room and spent nights
and weekends sifting through every page. He found letters sent by the
Washington State Department of Health to Jack in the Box, announcing a new,
mandatory cooking temperature for ground beef. He discovered that the chain had
not followed the new standards, undercooking its meat, and he studied
suggestion forms submitted by employees to corporate headquarters indicating
that Jack in the Box executives knew they were cutting corners.

Marler spent the next two years immersed in
discovery and settlement negotiations. He turned down multimillion-dollar
offers, and demanded a hundred million dollars, an unprecedented sum at the
time. He courted food and health reporters at major news organizations and
publicly accused the company’s executives of killing children. To defuse the
tension, he would meet the Jack in the Box attorneys at a hotel bar and buy
them drinks. (Hours later, he might call a reporter to pass along gossip he had
gleaned.) As the outbreak became national news, more than a hundred victims
came forward to be represented by Marler. The settlement, of more than fifty
million dollars, included $15.6 million for a ten-year-old girl named Brianne
Kiner, who spent forty days in a coma. It was the largest individual
food-poisoning claim in American history.

Prompted by public outrage, federal officials
took a dramatic step. On September 29, 1994, at a convention of the American
Meat Institute, Mike Taylor, at that time the administrator of the F.S.I.S.,
announced that his agency would adopt a zero-tolerance policy toward E. coli in
ground beef. There would be no acceptable level of contamination; anytime the
agency detected the bacterium, it would remove the product from distribution.
To do so, Taylor would classify the outbreak strain of E. coli as an
“adulterant,” which in meat and poultry is normally reserved for toxic
industrial chemicals. It was the first time that the agency had applied the
designation to a food-borne microbe. Although a consortium of meat producers
and retailers sued the U.S.D.A. that December, a federal court affirmed the
change. Five years later, officials expanded the rule to banish the same strain
of E. coli in other beef products. In 2011, they declared six additional
strains of E. coli to be adulterants. The lesson, Taylor told me, is that
“having accountability for prevention in the government regulatory system
works.” Yet, twenty years after Taylor’s landmark E. coli decision, officials
at the F.S.I.S. have failed to declare any other food-borne pathogen to be an
adulterant in raw meat.

People who work with Marler are accustomed to
e-mails landing in the night, with links and attachments and an abundance of
exclamation points. At least twice a month, he flies across the country to
speak with advocacy groups and at food-industry events. He will not accept payment
from any food company, and has turned down thousands of dollars to deliver a
short lecture, only to pay his own way to the venue and present the speech for
free. Sometimes, when Marler takes the stage, members of the audience walk out.
At a meeting of the Produce Manufacturers Association, in the summer of 2013,
he approached the lectern as loudspeakers blared the Rolling Stones song
“Sympathy for the Devil.”

Marler rarely has trouble getting companies to
concede when their product has caused illness, but occasionally one of his
cases involves more complicated legal questions. In 2011, thirty-three people
died of listeriosis after eating cantaloupe produced in Colorado by Jensen
Farms. Listeria is a rare but deadly bacterium. It infects about sixteen hundred
U.S. residents per year, and kills one in five victims. The disease can take up
to seventy days to manifest symptoms, and, when it does, the initial signs—a
sudden onset of chills, fever, diarrhea, headache, or vomiting—can resemble
those of the flu. Since the nineteen-eighties, it has caused three of the
deadliest food-borne outbreaks on record.

Because listeria can grow in cold
temperatures, it is perfectly suited to the era of prepared foods. “One of the
reasons that we still have a lot of food-borne illness is because we’ve created
these environments of convenience,” Marler told me one morning, as we barrelled
down the highway in his pickup, a 1951 Chevy with the license plate “ECOLI.”
The truck rattled and reeked of gasoline; his golden retriever, Rowan, slept in
the truck bed. “Bagged salad, refrigerators with secret drawers that are
supposed to keep things fresh for longer,” Marler said, shaking his head. “We
get so wrapped up with production and convenience, and nobody pays any
attention to bacteriology.”

Indeed, at the Jensen Farms plant, where the
contaminated cantaloupes originated, a mechanized system had been washing the
melons with tap water, rather than the antimicrobial solution recommended by
the F.D.A. The C.D.C. counts a hundred and forty-seven victims in the
cantaloupe case. Sixty-six have filed suit, and forty-six of them have hired
Marler. He is using a novel legal argument that could set a precedent in food
law.

Unlike the F.S.I.S., the F.D.A. does not have
a large army of inspectors for the products under its purview. Years can elapse
between official inspections at a given food producer. In place of federal
inspections, most reviews are conducted by private companies known as auditors.
These audits are demanded by retailers who want to be sure they are buying
clean food. In the case of the 2011 listeria outbreak, auditors had actually
been inside the plant just a few days before the first contaminated cantaloupes
were shipped.

Subcontractors working for the company
PrimusLabs noted the absence of antimicrobial wash but gave the facility a
rating of “superior” and a score of ninety-six per cent.

Marler has filed suit against Jensen Farms and
retailers like Walmart and Kroger, but he is also suing PrimusLabs on behalf of
listeria victims. There is no clear legal basis for doing so. Because
PrimusLabs is a private company, hired by another private company for a private
purpose, its lawyers contend that its only legal duty is to the producer that
commissioned its audit—not to the consumers who bought a cantaloupe several
steps down the supply chain. Attorneys for PrimusLabs have tried repeatedly to
have Marler’s lawsuit dismissed. In most jurisdictions, they have failed.

Marler says that the PrimusLabs attorneys have
made a strategic blunder. An early settlement would have kept the outbreak
relatively quiet, he told me, but each time the court rejects a motion by
Primus to dismiss the case a precedent is set. “There was an empty desert
between us, and I wasn’t even sure they were there,” he said. “Then they
started leaving bread crumbs. They’re creating a road map for how to try a case
against them.”

Privately, officials at the F.S.I.S. say that
they would like to take a more aggressive stand on salmonella. But an agency
ruling like the one twenty years ago on E. coli would almost certainly fail in
court today. In the past forty years, federal judges have severely limited the
agency’s power. That history began, by most accounts, with a 1974 lawsuit in
which the American Public Health Association sued the U.S.D.A. to demand that
it print bacterial warnings on raw meat. An appellate court ruled that the
warnings were unnecessary, because customers already knew that meat carries
bacteria. “American housewives and cooks normally are not ignorant or stupid,”
the judge wrote.

When another court ruled in favor of the
F.S.I.S. decision to declare E. coli an adulterant, the ruling included a
passage to prevent the F.S.I.S. from applying the same label to other bacteria:
“Courts have held that other pathogens, such as salmonella, are not
adulterants.” In response to that decision, in 1996 the F.S.I.S. enacted a
series of new rules to curb pathogens like salmonella. For whole chickens, the
salmonella “performance standard” was set at twenty per cent, meaning that one
in every five bird carcasses could be contaminated. That standard has since
been lowered to 7.5 per cent, but the performance standard for salmonella in
ground chicken is much higher—44.6 per cent—and for ground turkey it is 49.9
per cent. “Which means that almost half of all your ground chicken that goes
off the line can actually test positive for salmonella,” Urvashi Rangan, the
director of food safety at Consumer Reports, told me.

Some products, such as cut-up chicken parts,
have no performance standard at all. A hundred per cent of the product in
supermarkets may be contaminated without running afoul of federal limits.
Rangan told me that she was stunned when she discovered this, just recently:
“We’ve asked the U.S.D.A. point blank, ‘So does that mean there aren’t
standards for lamb chops and pork ribs?’ And they said, ‘Yeah, we don’t have
standards for those.’ ”

When I asked David Goldman, of the F.S.I.S.’s
public-health program, why a common product like chicken parts has no
contamination limit, he said, “We’re in the process of doing just that.” Last
week, the agency announced plans to establish its first performance standard
for chicken parts, limiting salmonella contamination to 15.4 per cent of
packages. I asked Phil Derfler, the deputy administrator, why it had taken the
agency twenty years. “It’s not like there is anybody else in the world who is
pursuing what we’re doing, and so it is a bit of trial and error,” he said. “If
there was a font of wisdom that said, ‘You should be doing this,’ maybe we
would be doing it.” I mentioned Denmark’s success in combatting salmonella, and
Derfler said, “I mean, it would be a major kind of almost top-to-bottom kind of
thing. And I don’t know what the costs would be in economics.”

Even when the agency sets a pathogen limit and
a producer exceeds it, officials have few options. Under the terms of a 1999
lawsuit, inspectors may not shut down a facility because of a failure to meet
contamination limits. Instead, officials must use indirect measures to put pressure
on the company, such as posting news of the violation on the F.S.I.S. Web site,
which could embarrass company executives. Derfler told me that the agency’s
work-arounds have been effective. “We have tried to do it,” he said.

In December of 2013, officials at the F.S.I.S.
unveiled a new “Salmonella Action Plan.” At the heart of the plan was a
“poultry-slaughter rule,” which would reduce the number of federal inspectors
observing the production line at slaughterhouses. Derfler told me that this
will allow the agency to place “a greater emphasis on microbiology” and added
that the rule also requires plants to do their own testing. Critics of the plan
wonder how it is possible to improve food safety by removing inspectors. On
March 13th of last year, Representative Louise Slaughter, who is the only
member of Congress with a degree in microbiology, and ten other members of the
House, including Rosa DeLauro, wrote a letter to the F.S.I.S., calling certain
aspects of the new plan “pernicious” and asking that it be suspended.
Nevertheless, the fiscal budget for 2015 assumes that it will go into effect,
and cuts the funding for several hundred federal meat inspectors.

Marler opposes the new poultry rule, but he
says that the real issue is the inspectors’ inability to close a plant when
they detect high levels of food-borne pathogens. “If you’re allowing the
product to become contaminated, having more or less inspectors is beside the
point,” he said. In 2011, the Center for Science in the Public Interest, a nonprofit
advocacy group, submitted a petition to the F.S.I.S. arguing that the four most
vicious types of salmonella should be declared adulterants, like E. coli. The
agency issued no response and, in May of last year, Marler consulted with the
center on a lawsuit demanding a reply to the petition. On July 31st, officials
formally rejected the proposal, claiming that “more data are needed.”

Marler scoffed at the claim. “One part of the
meat industry is just ignoring twenty years of progress on the other side,” he
said. “They’re using the same words, the same press releases, the same language
that they used twenty years ago, when they were saying, ‘Oh, my God, the sky
will fall if you label E. coli O157 as an adulterant.’ ”

When Marler’s litigation becomes complicated
and protracted, his firm can go months without generating income. Marler
routinely lends money to the firm to keep the operation afloat. One morning,
his longtime office manager, Peggy Paulson, stepped into his office with a
sheepish look. When Marler glanced up, Paulson said quietly, “I could use a
check for half a million bucks.” Marler’s jaw dropped with feigned horror. “So
could I!” he said with a laugh. Then he promised to write a check. Later, he
told me, “That’s partly why I don’t buy a vacation home. I’ve never been in a
position that I settled a case because I needed the money.”

During the past five years, Marler has begun
to move from litigation to activism. In 2009, frustrated by the short attention
span of the mass media, he founded an online newsletter, Food Safety News,
which employs four full-time reporters and costs Marler a quarter of a million
dollars a year to underwrite. On July 25, 2014, the editor of the site, Dan
Flynn, and two of its employees received subpoenas in a defamation lawsuit
against ABC News by the meat producer Beef Products, Inc. The lawsuit also
names two former employees of the F.S.I.S., who spoke critically about the
company in the ABC segment. Marler is defending those employees pro bono; two
weeks ago, he received a subpoena in the case himself. Late at night, Marler
also scribbles entries for the MarlerBlog, his personal Web site, where he has
posted more than five thousand commentaries on food safety in recent years.

Sometimes, when Marler encounters critics who
charge him with having predatory motives, he challenges them to “put me out of
business.” David Acheson, a former Associate Commissioner for Foods at the
F.D.A., told me, “That’s just become a bit of a trademark. He doesn’t want
that.” Still, Acheson told me that he has seen an evolution in Marler. “In the
early days, Bill was just on a mission to sue large food companies—he was on a
mission to make money,” Acheson said. “But I think during the course of that he
realized that there are problems with the food-safety system, and I think
progressively, philosophically, he changed from just being a plaintiff attorney
to being somebody who believes that changing food safety for the betterment of
public health is a laudable goal.” Acheson added, with no small measure of
distaste, “He still sues food companies.”

In April, 2014, Marler filed a suit against
Foster Farms on behalf of Rick Schiller. On July 31st, the C.D.C. announced
that the outbreak “appears to be over.” Foster Farms has implemented new
controls to reduce salmonella, but Marler hopes that a successful lawsuit will
pressure other producers to take similar precautions. Meanwhile, last summer,
an eight-year-old boy in Braintree, Massachusetts, died of complications from
E. coli after eating ground beef from a Whole Foods market. Six weeks later, an
epidemiologist with the Massachusetts Department of Public Health, in an e-mail
to the boy’s mother, accused Whole Foods executives of “grasping at straws and
dragging their feet in an attempt to avoid doing a recall.” On August 15th, the
F.S.I.S. announced that its testing had “determined that there is a link
between ground beef purchased at Whole Foods Market and this illness cluster.”
The company agreed to issue a recall of three hundred and sixty-eight pounds of
ground beef, but it continues to assert that “our thorough and ongoing
investigation of the circumstances has not shown any clear link to our
business.” On December 17th, Marler filed suit against Whole Foods on behalf of
the boy’s parents.

“Fifteen years ago, almost all the cases I had
were E. coli linked to hamburger, and now I have maybe two or three,” he told
me over the phone in mid-January. He was sitting in his office overlooking the
Seattle harbor. “It shows how much progress we’ve made. You might hate lawyers,
you might not want us to make money, but look what the beef industry did.”
Marler said he had recently eaten a hamburger for the first time in twenty
years. “Ground beef has learned its lesson—but chicken is still, in many
respects, unregulated. So we have to keep fighting.”

Marler Clark, The Food Safety Law Firm, is the nation’s leading law firm representing victims of foodborne illness outbreaks.